By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Two Orlando assisted living facilities (ALFs) won a case against the Agency for Health Care Administration (AHCA) on appeal. The First District Court of Appeal heard the case and filed an opinion in favor of the ALFs on November 30, 2011. To view the opinion, click here.
Appeals Court Dismissed Three Complaints Made by AHCA Due to Uncorroborated Hearsay Evidence.
On appeal, the ALFs challenged a final order issued by AHCA. The amended final order revoked the ALFs' licenses, denied their licensure renewal applications, and imposed administrative fines.
After conducting an investigation, AHCA filed a four count administrative complaint. The court of appeal dismissed AHCA's conclusion that the first three counts were proven. The appeal court dismissed these counts because they consisted of uncorroborated hearsay.
AHCA Alleged ALFs' Owners Operated Another Facility Without a Valid License.
The fourth count against the ALFs alleged that the ALFs' owners/administrators operated a third Florida facility without obtaining a valid license or qualifying for a license exemption. The ALFs argued that AHCA failed to present any witness at the administrative hearing who had first-hand knowledge that the facility in question was providing personal services “for a period of 24 hours to one or more adults who are not relatives of the owner or administrator.” These are material elements of the statutory definition of assisted living facility that AHCA was required to prove.
AHCA Offered Testimony from the ALFs' Employees at the Administrative Hearing.
At the administrative hearing, AHCA offered testimony from an employee who worked at the third facility from 8:00 A.M. to 8:00 P.M. She testified that the facility had five or six residents when she worked there for six weeks in Summer 2009. She said that she never saw a resident leave the facility at the end of the day or arrive in the morning.
In the recommended order, the administrative law judge (ALJ) found that there was no evidence presented by the ALFs that the residents were transported to another location at night. Click here to view the recommended order.
Court of Appeal Rules ALJ Improperly Shifted the Burden of Proof, Reverses Final Order.
The First District Court of Appeal ruled that the ALJ improperly shifted the burden of proof to the ALFs. The burden was misplaced when the ALJ suggested that the ALFs should have provided proof that the residents were transported out of the facility during the night. According to the court of appeal, it was AHCA's burden to establish that the facility was an unlicensed ALF. Furthermore, the court ruled that the testimony offered by AHCA did not foreclose the possibility that these residents were at the facility for periods less than 24 hours. Therefore, the court ruled that AHCA did not meet its burden of proof. The final order was reversed.
AHCA Petitions Florida Supreme Court to Hear Case.
After the court of appeal opinion was filed, AHCA petitioned the Florida Supreme Court to hear the case. In a document submitted to the Florida Supreme Court by AHCA, the agency said it provided sufficient evidence to justify taking action against the ALFs. The Florida Supreme Court has not yet agreed to hear this case.
Contact Health Law Attorneys Experienced in Assisted Living Facility Cases.
The Health Law Firm and its attorneys represent assisted living facilities (ALFs) and ALF employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Smallwood, Mary F. "Adjudicatory Proceedings." Administrative Law Section Newsletter. (Apr. 2012).
LeadingAge Florida. "Florida Supreme Court Requested to Hear ALF Case." LeadingAge Florida. (2012). From:
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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